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26 Sept 2018

New EU Directive on Copyright: Adoption Imminent

The European Commission’s Proposal for a Directive on copyright in the Digital Single Market (the proposed Copyright Directive) is designed to modernise existing copyright laws for the digital age. Among other matters, it aims to oblige tech companies to share more revenue with producers of the creative works that they publish and to change the way they monitor infringements.

This has sparked a fierce debate among lawmakers, tech and media industries and advocates of the free internet. Most controversies surround Articles 11 and 13 of the proposed Copyright Directive.

Article 11 is intended to give press publishers a means to earn money when news aggregators such as Google News, or digital giants such as Facebook or Twitter, share their content online, allowing publishers and authors to demand licence-fee payments.

Article 13, on the other hand, requires platforms such as YouTube and Facebook to proactively prevent users from sharing unlicensed copyright protected material by taking “appropriate and proportionate" measures, such as effective content recognition technologies.

The provision of Article 11, dubbed the “link tax”, is aimed at securing a fair remuneration for news publishers and journalists, and at protecting their intellectual property by requiring platforms to pay right holders for copyright protected material that is made available. This would also apply to snippets, where only a small excerpt of a text is displayed. However, it is feared that due to this future provision, a lot of content might simply disappear from the internet out of an unwillingness to pay.

Article 13, on the other hand, has been likened to censorship, and has drawn substantial criticism over concerns that tech giants, if placed under the burden of removal, will use automated content filtering systems which also catch and remove non-infringing content. For smaller platforms, such a burden might prove too heavy. Furthermore, it has been argued that the use of copyright protected material by way of commentary or parody should be permitted.

As a response to the above criticism against both provisions, certain safeguards have been introduced with a view to protecting small firms and the freedom of expression. First of all, actions taken by platforms to ensure that uploads do not infringe copyright rules must be designed in such a way as to avoid catching “non-infringing works”. Furthermore, the platforms will be required to establish rapid redress systems through which complaints can be lodged when an upload is removed erroneously.

In order to encourage start-ups and innovation, small and micro platforms are exempted from the proposed Directive. Uploading to online encyclopaedias in a non-commercial way, such as Wikipedia and open source software platforms such as GitHub, will be exempted too. A further exception to the “link tax” allows for the sharing of hyperlinks and “individual words” to describe articles.

Certain critics still argue that the proposed copyright Directive will mean the end of the Internet as we know it. If, in the future, online platforms will have to monitor uploaded content and remove anything that includes an extract of copyright protected work, the resources necessary to comply with the new legislation might lead many of these platforms to rethink their model as a whole.

The proposal also deals with the issue of text and data mining (TDM), also referred to as text and data analysis. TDM is a technique which is not aimed at reproducing a copyright protected work, but at extracting the information contained in it. Copying content is, depending on the method used, only necessary as an intermediate and incidental step in the process. Nevertheless TDM is surrounded by legal uncertainty and can be seen as a copyright infringement under current EU legislation unless covered by licence agreements.

TDM allows for processing, recombining, and extraction of further knowledge from large amounts of data and text. It can identify patterns and establish associations between seemingly unrelated pieces of information. As a tool, TDM, often used in conjunction with self-learning algorithms, can benefit society in fields such as traffic prediction, natural language processing or the identification of potential cures for diseases.

In order to catch up with more developed jurisdictions where the use of TDM is more common, the proposed Directive contains an exemption in Article 3 for the purposes of scientific research.

The proposed Directive is still awaiting final approval by the European Parliament, which could occur in January 2019: experts believe it unlikely that the future law will be rejected. It will also need to be approved by the Council of the EU, and then implemented by individual EU Member States. Critics fear that the new law’s implementation might vary significantly, depending on how national governments choose to interpret the Directive’s provisions.

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